COSTA BELLA DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
COSTA DEVELOPMENT CORPORATION, MIGUEL RECAREY, JR., OLGA RECAREY, MIGUEL RECAREY AND CARMEN RECAREY, APPELLEES
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Costa Bella Development Corporation appealed the dismissal of its mortgage foreclosure complaint for failure to comply with a discovery order to produce the original note. The court affirmed the dismissal as a valid sanction for bad faith discovery violations but vacated the dismissal as to two defendants who were not properly named or before the court.
The court held that dismissal was not an abuse of discretion given the calculated bad faith failure to comply with the discovery order after ample time. However, the court vacated the dismissal as to Miguel Recarey, Jr. and Olga Recarey, who were not properly named as defendants and thus not properly before the court.
[1] Dismissal of a complaint with prejudice for failure to comply with a discovery order is warranted when the plaintiff demonstrates a failure to use every available means t…
[2] A trial court does not abuse its discretion by imposing the sanction of dismissal when a party's non-compliance with a discovery order is a calculated act of bad faith.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The order of the court dismissing plaintiff's complaint with prejudice for failure to comply with an order of discovery was warranted where it was demonstrated that plaintiff had failed to use every available means to produce the original note sued upon after a passage of more than ample time to comply.”
Establishes that dismissal sanction was appropriate given the complete failure to comply with discovery despite adequate time and available means.
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Join FLexlaw to unlock all legal intelligenceCosta Bella commenced a foreclosure action on a mortgage that had been previously assigned to the Bank of Miami, then to Latin American Development Ba…
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PER CURIAM.
The order of the court dismissing plaintiff’s complaint with prejudice for failure to comply with an order of discovery was warranted where it was demonstrated that plaintiff had failed to use every available means to produce the original note sued upon after a passage of more than ample time to comply. The sanction of dismissal on this record, which shows that the failure to comply was a calculated act of bad faith,1 see A.H. Robins Co., Inc. v. Devereaux, 415 So. 2d 30 (Fla. 3d DCA 1982), rev. denied, 426 So. 2d 25 (Fla.1983); Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1981); Herold v. Computer Components International, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971), was not an abuse of discretion.
However, in affirming the dismissal of the action we vacate its dismissal as to Miguel Recarey, Jr. and Olga Recarey who were not named defendants and were not properly before the court as parties.
The dismissal as it relates to Miguel Re-carey, Jr. and Olga Recarey is VACATED; in all other respects the order of dismissal is AFFIRMED.
. Appellant commenced this action to foreclose on a mortgage.
The record reflects that prior to this action the mortgage had been assigned to the Bank of Miami, which had assigned it to Latin American Development Bank & Trust Co., Ltd. Latin American Bank & Trust had also brought an action, then pending before the same judge, to foreclose the same mortgage. Appellees have not challenged the right of the assignee Latin American Bank & Trust to sue on the instrument but do challenge the right of appellant-assignor to maintain this separate action on the same instrument. Only one action can be maintained and in the absence of a reassignment of the mortgage to appellant, or knowledge and consent by the assignee of the appellant’s action (which is not yet determined), it is only assignee Latin American Bank & Trust, and not the appellant, which can maintain the action. See Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 1st DCA 1966).
The court understandably wished to avoid two separate full-blown trials. Production of the original note was relevant and material to the appellees’ pending motion to dismiss on the ground that appellant was not the real party in interest.
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Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984)…n this action to foreclose mortgages on condominium apartments are affirmed upon a holding that (1) the issue of whether the dismissal was proper was rendered moot by this court’s decision in Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3d DCA 1983), (2) a trial court’s ruling permitting or denying further amendments to pleadings will not be disturbed on appeal in the absence of an abuse of discretion, Price v. Morgan, 436 So. 2d 1116 (Fla. 5th DCA 1983); Lasar Manufacturing…
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Gayety Theatres, Inc. v. Fernandez, 551 So. 2d 534 (Fla. 3d DCA 1989)…S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); State ex rel. Gerstein v. Walvick Theatre Corp., 298 So. 2d 406 (Fla.1974); Costa Bella Dev. Corp. v. Costa Dev. Corp., 441 So. 2d 1114 (Fla. 3d DCA 1983).…
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Scott G. Kranz and IMG v. Levan, 602 So. 2d 668 (Fla. 3d DCA 1992)…, 511 So. 2d 298 (Fla.1987); Cedars Assoc. v. E.R. Brownell & Assoc., Inc., 466 So. 2d 1130 (Fla.3d DCA 1985); Morales v. Perez, 445 So. 2d 393 (Fla.3d DCA 1984), cause dismissed, 453 So. 2d 44 (Fla.1984); Costa Bella Dev. Corp. v. Costa Dev. Corp., 441 So. 2d 1114 (Fla.3d DCA 1983); Agendas Marítimas Nicaragüenses, S.A. v. Usa-torres, 435 So. 2d 247 (Fla.3d DCA 1983); A.H. Robins Co. v. Devereaux, 415 So. 2d 30 (Fla.3d DCA 1982), cert. denied, 426 So. 2d 25 (Fla.1983); European X-Ray Distrib. of Am., Inc. v.…
Authorities Cited
- Herold v. Computer Components Int'l, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971)
- Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1981)
- A. H. Robins Co., Inc. v. Devereaux, 415 So. 2d 30 (Fla. 3d DCA 1982)
- Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 1st DCA 1966)